In the Second Reading debate of the Wales Act 2017 in the House of Lords, Lord [David] Hunt, Secretary of State for Wales (SSW) from 1990 to 1993, recalled how he had reached agreement with then, Home Secretary Kenneth Clarke about the transfer of policing from the Home Office to the Welsh Office but that ‘it was stopped by the bureaucracy of Whitehall’.[ii] If that transfer had happened, policing would have been devolved as part of the original transfer of ministerial functions to the nascent National Assembly for Wales (NAW) in 1999.[iii] The NAW took over the functions of the SSW – as policing wasn’t part of them, it wasn’t devolved.
This was unlike Scotland and Northern Ireland where policing was devolved, as it was part of previous arrangements. The differential starting position can be justified for pragmatic reasons – existing arrangements facilitated devolution in Scotland and Northern Ireland but not in Wales. The devolution settlement for Wales reflected that differential starting position – unlike in Scotland or Northern Ireland, a separate legislature and executive was not established and the NAW did not have primary law-making powers. The Government of Wales Act 2006 remedied this. The Welsh government was established as a separate body, and primary law-making powers arrived in 2011 – devolved arrangements had been significantly strengthened and there was 12 years’ experience of devolved government. Pragmatic justification for not devolving policing was less sustainable. And in a comparative context, at that time, the Police and Social Responsibility Act 2011 gave policing responsibilities to the mayor for London.[iv]
The application of logic establishes a strong case for the devolution of policing. Policing is delivered locally. Effective policing is integral to successful delivery in matters that are devolved. Economic and social well-being is advanced if there are safe communities and the role of law is upheld. There are obvious examples where there is interface with policing and devolution. Four are mentioned to illustrate that position:
- Youth justice – the Crime and Disorder Act 1998 establishes a multi-disciplinary approach to youth justice involving the police and devolved matters such as social care, education, health and housing.
- Children and adult safeguarding – the Social Services and Well-being (Wales) Act 2014 establishes separate children and adult safeguarding structures, to which the police necessarily contribute as safeguarding is about protection of vulnerable people.
- Mental health – the police have powers under the Mental Health Act 1983[v] to remove a person from a public place and take her/him to a ‘place of safety’ if it appears that the person is suffering from a mental disorder. The police under this arrangement is an agent of the health service.
- Economic development – policing of economic crime through enforcement of the law on theft and fraud[vi] promotes economic development because fairer trading conditions are established. This allows legitimate economic effort to flourish.
If there is a natural policy relationship between policing and devolved matters, why is policing not yet devolved, especially when it is devolved to Scotland and Northern Ireland? And that position looks more anomalous in the light of London and, more recently, Manchester.
The Greater Manchester Combined Authority (GMCA) comprises ten local authorities headed by an elected mayor (Andy Burnham). The GMCA has responsibility, as in Wales, for such matters as health, social care, housing, education and economic development. And in 2017, there was a transfer of policing responsibilities to the mayor from the police and crime commissioner for the Greater Manchester police.[vii]
Policing in London and Manchester is part of wider portfolios that include matters that are devolved in Wales.
There is a technical distinction between devolution of policing as in Scotland and Northern Ireland and the narrower devolution in London and Manchester, but the overall thrust is the same – ie, that policing has a natural place in the range of matters necessary for effective devolution. The London and Manchester arrangements make sense. Moreover, the UK government did not object to that position as in each case transfer was through UK government action. [viii]
There have been calls for devolution of policing in Wales. This included a call in the second report of the Silk Commission-[ix] which was established by the UK government to report on the ‘the powers of the [NAW]… and to recommend modifications… that would enable the [UK] Parliament and the [NAW] to better serve the people of Wales’.[x] The UK government chose not to implement the recommendation as it considered that there was ‘no consensus to devolve policing’.[xi]
What is the basis for continued resistance to the transfer of policing? Responding to the question can be broken down into two parts: first, justification in principle; second, resourcing.
As to justification in principle, there is a strong (overwhelming?) case based on the evidence of Scotland, Northern Ireland, London, Manchester and the core interface between policing and devolved matters in Wales.
Sometimes it is argued that because of policing’s natural relationship with the justice system the two can’t be separated – a point made by the UK government in its submission to the Silk Commission.[xii] The justice system is not devolved to Wales. But, surely, each can be looked at separately? The justice system is not devolved to London or Manchester. Moreover, the Silk Commission separated them and recommended that devolution of the justice system be deferred.[xiii]
If transfer can be justified in principle, it does not follow that transfer occurs automatically. There must be negotiation to ensure sufficient transfer of resource for (as near as possible) a seamless continuity of policing from which to develop the new devolutionary arrangements.
But to get to that second part first requires UK government approval (or absence of objection) to devolution of policing in principle. A starting point for arguing that case is to ask the UK government why, when it is appropriate to devolve policing to London and Manchester, it is inappropriate for Wales? In answering, this time, Whitehall bureaucracy must not get in the way.
[i] Huw Evans is a Gorwel board member.
[ii] Wales Bill (HL Deb 10 October 2016, vol 774, col 1730).
[iii] National Assembly for Wales (Transfer of Functions Order) 1999 (SI 1999/672).
[iv] ss 3-4.
[v] s 136.
[vi] eg, Theft Act 1968, Fraud Act 2006.
[vii] See the Greater Manchester Combined Authority (Election of Mayor with Police and Crime Commissioner Functions) Order 2016 (SI 2016/448) and the Greater Manchester Combined Authority (Transfer of Police and Crime Commissioner Functions to the Mayor) Order (SI 2017/470).
[viii] The Police and Social Responsibility Act 2011 was UK government legislation as was SI 2016/448 and SI 2017/470.
[ix] Commission on Devolution in Wales, Empowerment and Responsibility: Legislative Powers to Strengthen Wales (Commission on Devolution in Wales 2014) 111.
[xi] HM Government, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales (Cm 9020 2015) 54.
[xii] Commission on Devolution in Wales (n 9) 104.
[xiii] ibid 122.